Sexual violence victims face unique and enduring safety risks following an assault. The legal system’s gradual shift from solely punishing offenders for past acts to protecting survivors from future harm reflects a recognition of this fact. But so-called “sexual assault protection order” statutes impose onerous “future harm” requirements – including proof by clear and convincing evidence that another sexual assault is imminent – that belies the realities of ongoing injury for victims and creates barriers to protection similar to the criminal justice approach to rape.
This Article suggests a different approach, one justified by a novel analogy to the refugee protection paradigm. Asylum law prospectively protects applicants upon a showing that they have a “well-founded fear” of future persecution. Only the most severe forms of discrimination qualify as “persecution.” But applicants who can prove they have suffered a single act of past persecution enjoy a rebuttable presumption of future harm. Both courts and Congress have recognized the propriety of this presumption, given the “atrocity” of persecution and the permanent scarring it causes to “the mind of a refugee.” The same logic applies to sexual violence, long considered “the most heinous crime” short of murder. By transplanting the evidentiary framework from asylum law to sexual civil protection, this Article does two things unique in scholarly literature: 1) provides the first comprehensive consideration and overhaul of the sexual violence protection order regime, and 2) reconceptualizes asylum as a form of prospective civil protection.
It is the policy of the Utah Law Review to verify the accuracy of every assertion of law and fact made in every article published in our journal. To ensure such accuracy in every article, the Board of Editors requires that the journal’s staff review each cited source and verify that the source supports the author’s proposition. Unfortunately, the Utah Law Review was recently made aware of an oversight and error appearing in the Shawn E. Fields’s article Sexual Violence and Future Harm: Lessons from Asylum Law, 2020 UTAH L. REV. 177, at pages 211–12. To correct these errors, the Utah Law Review is rescinding the previous version of Professor Fields’s article from online publication and is replacing it with a revised version of the article, to appear in its entirety on the Utah Law Review’s websites: https://dc.law.utah.edu/ulr/; and utahlawreview.org. In addition, Utah Law Review has submitted this revised article for online publication in Westlaw, LexisNexis, Bloomberg, and Heinonline. Professor Fields’s article will maintain the citation 2020 UTAH L. REV. 177. Furthermore, Utah Law Review is hereby notifying all print subscribers of the nature of the error in Professor Fields’s article and is including the corrected version of pages 211–12. Specifically, the version of the Professor Field’s article originally published in volume 2020, issue 1 of the Utah Law Review incorrectly described the procedural posture of the Washington state case of Roake v. Delman, 408 P.3d 658 (Wash. 2018) and incorrectly stated that the trial court in Roake v. Delman had concluded a sexual assault occurred, when in fact the trial court had not made such a finding. Id. at 661 n.5. THE BOARD OF EDITORS, UTAH LAW REVIEW See pages ii and iii, infra, for the corrected version of pages 211–12 of Professor Field’s article.
Fields, Shawn E.
"Sexual Violence and Future Harm: Lessons from Asylum Law,"
Utah Law Review: Vol. 2020
, Article 3.
Available at: https://dc.law.utah.edu/ulr/vol2020/iss1/3